Defending Scalia

I know I've spent a fair amount of time lately criticizing Justice Scalia about things he has said in his recent appearances, but there's one thing he said that is being attacked on this blog that I think he should be defended about. Will Bunch, owner of the Attytood blog, says that Scalia holds the media in contempt because of this comment:

Scalia expressed disdain for the news media and the general reading public and suggested that together they condone inaccurate portrayals of federal judges and courts. "The press is never going to report judicial opinions accurately," he said.

And Bunch, based on that, says that Scalia holds in contempt, "The news media, which he complains -- without offering any evidence -- does a poor job of reporting on the judiciary." But on this, I think Scalia is pretty much dead on. Anyone who has followed constitutional law in any detail knows that he's right. All of the same problems we see in the media on other issues is true in their legal reporting too - obsession with celebrity, oversimplifying, casting the two sides into simplistic good guys and bad guys, and so forth.

We've all seen newspaper articles time and time again that tell you that this decision may have been in favor of a big corporation or against a labor union, with virtually no discussion of the actual legal issue involved (and we've seen special interest groups do the same thing, telling us that this or that nominee for the bench has voted "for big business" or "against injured people" some percentage of the time, with no discussion at all about whether those votes were justified or not).

We've all seen the ridiculous media focus on Anna Nicole Smith's case going before the Supreme Court. Did you ever see any discussion of the actual legal issue in the case? I don't recall ever seeing any. They told you what she wore, they told you whether she won, but they told you virtually nothing about the substance of the case or the ruling. They're good at giving you winners and losers. For example, when the Raich ruling came down, they could tell you that medical marijuana users lost. But you would have thought that the judges only had to decide "Is marijuana good or bad?" Virtually no discussion of the fact that the case really involved the interstate commerce clause and that the fact that it involved marijuana was really irrelevant to the outcome.

The same is true in science, of course. The science reporting in most of the mainstream media is horrible. The articles about any new scientific discovery read like breathless press releases from a junior PR flak - "this changes everything we thought we knew about (fill in the subject)." There are exceptions to these rules. Linda Greenhouse generally does a pretty good job of legal reporting in the NY Times, so does Nat Hentoff in the Village Voice. And if they can get Carl Zimmer to write the article, the science reporting improves dramatically.

But as a rule, the media does a lousy job on these issues where specialized knowledge is required to report on them accurately. And Scalia is not wrong to be bothered by the fact that "people understand the courts through a news media that typically oversimplifies and sensationalizes." There's simply no doubt he's right. Now, I think he's wrong when he points to the internet as another source of the same problem.

Yes, there's a lot of bad internet commentary out there, but so what? One of the major benefits of the internet, particularly in this area, is that it has fostered so much interesting and serious legal discussion that would not have otherwise existed outside the law journals. The blawgosphere, as it's sometimes called, has become a forum for fascinating legal debates between sometimes very prominent scholars, and it provides the opportunity to do so without the several months lead time required for a law review article to be published.

We now get instant analysis of court rulings, available to anyone who is interested, and unlike the mainstream press reports these are written by people who actually understand the law. One of the first things I got involved in after starting my blog was a multi-blog exchange about the 9th amendment that included Feddie and the gang at Southern Appeal, Eugene Volokh, Randy Barnett, Stephen Bainbridge, Larry Solum and other serious legal scholars. That's an exchange that could have happened nowhere else, and it's easily accessible to anyone interested in reading it. That's a new medium that ought to be celebrated, nor derided.